CONSULTING AGREEMENT
Exhibit
10.12
CONSULTING
AGREEMENT,
dated the 31st
day of March, 2006, by and between Accountabilities, Inc., a
Delaware corporation having executive offices at 000 Xxxxx Xxxx, Xxxxx 000,
Xxxxxxxxx, XX 00000 (the “Company”), and
Washington Capital, LLC, a Delaware limited liability company,
with an address of P. X. Xxx 000, Xxxxxxxx, Xxx Xxxxxx 00000 (the “Consultant”)
.
W
I T N E S S E T H :
WHEREAS,
the
Consultant has used its considerable knowledge of and experience providing
consulting services regarding the identification, evaluation, structuring,
negotiating and closing of joint ventures, strategic alliances and business
acquisitions as well as product development, and has provided invaluable
assistance and advice with respect to potential acquisition opportunities of
the
Company, specifically, the acquisition of certain branches of US Temp
Services, Inc., located in Burbank, California, Montebello, California,
Stockton, California, Colorado Springs, Colorado and Las Vegas,
Nevada (the “Business”); and
WHEREAS,
the Company
obtained the benefit of Consultant’s special knowledge and experience regarding
US Temp Services, Inc. acquisition; and
WHEREAS,
the Company
desires to compensate Consultant for its services;
NOW,
THEREFORE, in
consideration of the premises and the mutual covenants and agreements herein
contained the Company and the Consultant hereby agree as follows:
1. Term. The
Company hereby engages Consultant to render the consulting services as
hereinafter set forth, and Consultant hereby agrees to render such services
for
a period of three years commencing on the date hereof and terminating on March
31, 2009 (the “Term”).
2. Consulting
Services. The
Company hereby retains the Consultant, and the Consultant agrees to render
consulting and advisory services to the Company during the Term hereof in
connection with the Business, from time to time, and as the Chief Executive
Officer of the Company may reasonably request. Consultant shall not be required
to expend any minimum number of hours hereunder and the rendering of all
consulting services shall be subject in priority to Consultant's own business
interests.
3. Consulting
Fees. In consideration
for
(i) the availability of Consultant to render the services, (ii) the services
to
be rendered by Consultant during the Term, and (iii) the other provisions of
this Agreement, the Company shall pay compensation to the Consultant as
follows:
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3.1
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One
Hundred Fifty Thousand Dollars ($150,000) payable to Consultant
immediately upon execution of this
Agreement;
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3.2
|
Thirty
Thousand Dollars ($30,000) per annum, for the Term of this Agreement,
payable in weekly installments;
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3.3
|
One
Hundred Fifty Thousand Shares (150,000) shares post 5-for-1 reverse
split
of Accountabilities, Inc. restricted Common Stock, issued in the
name of
Washington Capital, Llc, within ninety (90) days of the Closing Date
of
the Asset Purchase Agreement.
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4. Expenses.
The fee due hereunder shall include all expenses of the Consultant.
5. Termination.
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5.1
|
The
Company may terminate the Consultant for Cause. Upon such
termination the Company shall have no further obligations to the
Consultant, except for compensation, or other benefits due, but not
yet
paid.
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5.2
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“Cause”
shall mean: (i) the Consultant’s willful and continued failure
substantially to perform its services to the Company, if the Consultant
is
not then acting in the best interests of the Company, as determined
by the
President of the Company, or (ii) the Consultant’s willful engagement in
misconduct which is materially injurious to the Company, monetary
or
otherwise.
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5.3
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Termination
for Cause shall be effectuated only if: (i) the
Company has delivered to the Consultant a copy of “Notice of
Termination”, which gives the Consultant at least five (5) business days
prior notice detailing what the Consultant was guilty of and setting
forth
and specifying the particulars thereof in
detail.
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6. Confidentiality,
Non-Compete, Non-Solicitation
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6.1
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Any
commercial information, technical information, trade secrets, inventions,
formulas, software, databases, operations, customers, business methods
or
practices (“Confidential Information”) of the Company which is acquired,
including without limitation in writing, orally or by electronic
means, by
the Consultant from the Company (or vice versa), during the term
of this
Agreement shall be kept confidential, and shall not be disclosed
to any
third party.
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6.2
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Each
party shall return to the other the Confidential Information obtained
from
the other upon the termination of this Agreement, and shall not utilize
this Confidential Information for any
purpose.
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6.3
|
Confidential
Information does not include any information that at the time of
disclosure to the receiving party (a) is generally available to and
known
by the public (other than as a result of a disclosure by the receiving
party or any of its representatives), or (b) was available to the
receiving party on a non-confidential basis from a source that is
not and
was not prohibited from disclosing such information to the receiving
party
by a contractual, legal or fiduciary
obligation.
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6.4
|
If
the Consultant is required by deposition, interrogatory, request
for
documents, subpoena, civil investigative demand or similar process
to
disclose any of the Confidential Information, the disclosing party
shall
provide the non-disclosing party with written notice of such requirement
no less than ten (10) business days prior to disclosing any Confidential
Information.
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7.
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Miscellaneous
Provisions.
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7.1
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Severability. In
the event that any provision of this Agreement is found to be illegal
or
unenforceable by any court or tribunal of competent jurisdiction,
then
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to
the
extent that such provision may be made enforceable by amendment to or
modification thereof, the parties agree to make such amendment or modification
so that the same shall be made valid and enforceable to the fullest extent
permissible under existing law and public policies in the jurisdiction where
enforcement is sought, and in the event that the parties cannot so agree, such
provision shall be modified by such court or tribunal to conform, to the fullest
extent permissible under applicable law, to the intent of the Parties in a
valid
and enforceable manner, if possible and if not possible, then be stricken
entirely from the Agreement by such court or tribunal and the remainder of
this
Agreement shall remain binding on the parties hereto.
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7.2
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Amendment. No
amendment or modification of the terms or conditions of this Agreement
shall be valid unless in writing and signed by all parties to be
bound
thereby.
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7.3
|
Governing
Law. This Agreement shall be interpreted,
construed, governed and enforced according to the internal laws of
the
State of New Jersey without regard to conflict or choice of law principles
of New Jersey or any other jurisdiction. This Agreement shall
be executed in New Jersey and is intended to be performed in New
Jersey. In the event of litigation arising out of this
Agreement, the parties hereto consent to the personal jurisdiction
of the
State of New Jersey, County of
Monmouth.
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7.4
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No
Waiver. If any party to this Agreement fails to,
or elects not to enforce any right or remedy to which it may be entitled
hereunder or by law, such right or remedy shall not be waived, nor
shall
such non-action be construed to confer a waiver as to any continued
or
future acts, nor shall any other right or remedy be waived as a result
thereof. No right under this Agreement shall be waived except
as evidenced by a written document signed by the party waiving such
right,
and any such waiver shall apply only to the act or acts expressly
waived
in said document.
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7.5
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Counterparts. This
Agreement may be executed in any number of counterparts, and each
such
counterpart will, for all purposes, be deemed an original instrument,
but
all such counterparts together will constitute but one and the same
Agreement.
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7.6
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Binding
Agreement. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto, and upon their
respective heirs, successors, assigns and legal
representatives.
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7.7
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Counsel. Each
of the parties hereto represents that it, she or he has consulted
legal
counsel in connection with this Agreement, or has been given full
opportunity to review this Agreement with counsel of its choice prior
to
execution thereof. The parties hereto waive all claims that
they were not adequately represented in connection with the negotiation,
drafting and execution of this Agreement. Each party further
agrees to bear its own costs and expenses, including attorneys’ fees, in
connection with this Agreement. If any party initiates any
legal action arising out of or in connection with enforcement of
this
Agreement, the prevailing party in such legal action shall be entitled
to
recover
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from
the
other party all reasonable attorneys’ fees, expert witness fees and expenses
incurred by the prevailing party in connection therewith.
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7.8
|
Notices. All
notices and demands permitted, required or provided for by this Agreement
shall be made in writing, and shall be deemed adequately delivered
if
delivered by hand or by mailing the same via the United States Mail,
prepaid certified or registered mail, return receipt requested, or
by
priority overnight courier for next business day delivery by a nationally
recognized overnight courier service that regularly maintains records
of
its pick-ups and deliveries and has daily deliveries to the area
to which
the notice is sent, addressed to the parties at their respective
addresses
as shown below:
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Name Address
To
the
Company: Accountabilities,
Inc.
000
Xxxxx Xxxx
Xxxxx
000
Xxxxxxxxx,
XX 00000
Facsimile: (000)
000-0000
With
a
Copy
To: Xxxxxxx
Xxxxx, Esq.
0
Xxxx Xxxxx
Xxxx
Xxxxx, Xxx
Xxxx 00000
Facsimile: (000)
000-0000
To
Consultant: Washington
Capital, LLC
P.
O. Xxx 000
Xxxxxxxx,
XX 00000
Facsimile: 732-577-1700
Notices
delivered personally shall be deemed communicated as of the date of actual
receipt. Notices mailed as set forth above shall be deemed
communicated as of the date three (3) business days after mailing, and notices
sent by overnight courier shall be deemed communicated as of the date one (1)
business day after sending.
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7.9
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Entire
Agreement. This Agreement and the Ancillary Agreements set forth the
entire agreement and understanding of the parties hereto in respect
of the
subject matter contained herein, and supersedes all prior agreements,
promises, understandings, letters of intent, covenants, arrangements,
communications, representations or warranties, whether oral or written,
by
any party hereto or by any related or unrelated third
party. All exhibits attached hereto, and all
certificates, documents and other instruments delivered or to be
delivered
pursuant to the terms hereof are hereby expressly made a part of
this
Agreement, and all references herein to the terms “this Agreement”,
“hereunder”, “herein”, “hereby” or “hereto” shall be deemed to refer to
this Agreement and to all such
writings.
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IN
WITNESS WHEREOF,
the parties hereto have caused this Agreement to be executed as of the date
first above written.
| COMPANY: | AccountAbilities, Inc. | ||
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By:
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/s/ Xxxxx Xxxxxxx | |
| Name: Xxxxx Xxxxxxx | |||
| Title: President | |||
| CONSULTANT: | Washington Capital, LLC | ||
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By:
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/s/ Xxxxx Xxxxx | |
| Name: Xxxxx Xxxxx | |||
| Title: President | |||
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